The Torture Convention & Appendix M of the Army Field Manual on Interrogations

We are on the eve of the release of the Senate Select Committee on Intelligence’s report on the Central Intelligence Agency’s interrogation program. Although this report will discuss interrogation tactics that have been roundly discredited and unequivocally prohibited, we should not lose sight of the fact that some current detainee treatment techniques, such as force-feeding, continue to be controversial and to draw significant criticism. As we have been discussing, the Committee Against Torture recently released its Concluding Observations in response to the United States’ combined periodic report and presentation concerning U.S. compliance with the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. As Ryan Goodman discussed, the Concluding Observations note both positive developments and areas of concern and contain a number of pointed recommendations. In particular, the Committee urged the United States to reconsider whether the techniques authorized in Appendix M of the Army Field Manual on Human Intelligence Collector Operations (FM 2-22.3) (September 2006) are consistent with the Torture Convention. Appendix M authorizes what it calls “Separation”, which involves physically separating detainees from one-another for renewable 30-day periods (Physical Separation) or sensorily separating them through the use of blindfolds and other stimuli-blocking accessories for renewable 12-hour periods (Field Expedient Separation). These techniques are employed for the purpose of preventing collusion amongst subjects, facilitating interrogations by decreasing the detainee’s resistance, fostering feelings of futility, and prolonging the shock of capture.

Although the Army Field Manual contains a number of express and implied protections to ensure that these techniques are not abused, for the reasons that follow, the Committee is right to raise concerns about the continued authorization of Physical Separation and Field Expedient Separation even while other Enhanced Interrogation Techniques have been expressly prohibited by, inter alia, the Detainee Treatment Act and President Obama’s Executive Orders. This post outlines these reasons and then provides some background on Appendix M and a close read of the recent exchange between the U.S. delegation and the CAT Committee on the continued use of methods.

First: The Torture Convention prohibits in equal measure torture and other forms of cruel, inhuman, and degrading treatment or punishment (CIDT) as does international humanitarian law (IHL). Indeed, almost every codified prohibition of torture is accompanied by a bar on CIDT, although such acts are not criminalized as extensively as torture. Jurisprudence and United Nations experts have confirmed that this prohibition covers a broad continuum of mistreatment. In a 1986 report, for example, the Special Rapporteur on Torture and Other CIDT identified the following acts as constituting torture: beatings; extraction of nails, teeth, etc.; burns; electric shocks; suspension; suffocation; exposure to excessive light or noise; sexual aggression; administration of drugs in detention or psychiatric institutions; prolonged denial of rest or sleep; prolonged denial of food; prolonged denial of sufficient hygiene; prolonged denial of medical assistance; total isolation and sensory deprivation; being kept in constant uncertainty in terms of space and time; threats to torture or kill relatives; total abandonment; and simulated executions. Acts of lesser severity are considered CIDT.

Second: The proven potential for authorized techniques to be misused (either advertently or inadvertently) underscores that the lawfulness of Separation under U.S. and international law depends entirely on how it is deployed. Indeed, the Field Manual presents a complex choreography for the use of all authorized interrogation techniques and assumes that they will be utilized in strict adherence to articulated protections. The Manual notes that Separation in particular should only be utilized with “special approval, judicious execution, special control measures, and rigorous oversight”—an implicit acknowledgement of how dangerous this method can be. As presented in greater detail below, the U.S. delegation’s repeated attempts to explain to the CAT Committee how Separation is humanely utilized provide further evidence (indeed, showcase) how complex the Separation instructions are and how subject they are to different interpretations, making them highly susceptible to intentional and unintentional abuse in application.

With any technique being used in an interrogation context, one must query what will happen if a subject failed to divulge useful information after each technique had been “properly” employed. Particularly with respect to these forms of Separation, which involve physical contact between the subject and his captors and contemplate the use force, there is an acute risk that authorizing Separation in a highly charged interrogation environment will result in force drift, especially among young and inexperienced interrogators who are concerned about “getting results.” Alberto Mora, who while in the Department of Defense opposed the authorization of Enhanced Interrogation Techniques in an internal memo, has described force drift as an

observed tendency among interrogators who rely on force. If some force is good, these people come to believe, then the application of more force must be better. Thus, the level of force applied against an uncooperative witness tends to escalate such that, if left unchecked, force levels, to include torture, could be reached.

By isolating the detainee, Separation also increases the possibility that he or she will be subjected to other forms of prohibited abuse outside of the presence of potential witnesses. It has long been recognized that torture is routinely committed in connection with incommunicado detention.

Third: Although Separation is billed as an interrogation technique, it could easily be purposefully employed for punitive, intimidation, or social control purposes or on discriminatory grounds. Even though various levels of approval are required before Separation can be utilized, someone intent on punishing a subject for perceived misdeeds, or to threaten other detainees, could easily fashion a plausible rationale for its application.

Fourth: Appendix M acknowledges that Separation may be accompanied by sleep deprivation (4 hours/day). Although the U.S. delegation insisted that the overarching prescription that detainees be treated humanely would prevent a situation in which detainees in Separation were allowed only 4 hours/day of sleep for a prolonged period of time, this is not express in the text—a fact that clearly troubled the CAT Committee members. In any case, one can imagine that it would be difficult to monitor exactly how much sleep an individual in Separation is receiving (and how much they need in order to remain mentally and physically healthy). From an optics perspective, authorizing situations in which detainees may receive only 4 hours of sleep is reminiscent of the so-called “Frequent Flier” program allegedly utilized against several detainees in Guantánamo—including Mohammad Jawad, who as a minor was reportedly physically moved 112 times in 14 days—and the infamous Bradbury Memorandum, which indicated that the CIA imposed up to 180 hours of sleep deprivation on some detainees.

Fifth: Separation is also reminiscent of other interrogation techniques—such as stress positions (so-called “self-inflicted pain”), isolation and sensory deprivation, temperature and dietary manipulation, noise bombardment, psychological humiliations (forced nudity, body cavity searches, prevention of personal hygiene, forced grooming, denial of privacy, and infested surroundings), threats against self or family, witnessing or hearing the abuse of others, and attacks on cultural values or religious beliefs—that have been described as “torture lite” or “clean” or “stealth torture” because they do not at first consideration bear the hallmarks of brutality associated with ancient systems of proof or the barbaric practices of today’s authoritarian regimes. These forms of abuse do not physically mutilate or maim the victim’s body, leave permanent traces, require direct contact between the victim and the individual utilizing the particular technique, or cause pain immediately. They give the illusion that the captor is not personally inflicting pain or suffering on the victim; rather, it is the temperature of the room, the environment, or even the failings of the subject’s own body that are the causal agents. And yet, are such techniques truly less severe than the rack and screw of yesteryear? Might the combined effects of such techniques be more disruptive and damaging than a short but brutal beating?

Ill treatment during captivity, such as psychological manipulations, humiliating treatment, and forced stress positions, does not seem to be substantially different from physical torture in terms of the severity of mental suffering they cause, the underlying mechanism of traumatic stress, and their long-term psychological outcome. * * * These findings suggest that physical pain per se is not the most important determinant of traumatic stress in survivors of torture. * * * These findings [also] imply that various psychological manipulations, ill treatment, and torture during interrogation share the same psychological mechanism in exerting their traumatic impact. All three types of acts are geared toward creating anxiety or fear in the detainee while at the same time removing any form of control from the person to create a state of total helplessness.

memory impairment, reduced capacity to concentrate, somatic complaints such as headache and back pain, hyperarousal, avoidance, and irritability. Additionally, victims often experience severe depression with vegetative symptoms, nightmares, and ‘feelings of shame and humiliation’ associated with sexual violations, among others

According to researchers, it may be difficult to predict when psychological manipulation produces lasting damage—the sort of “prolonged mental harm” envisaged in the United States’ reservations, understandings and declarations to the CAT. What matters most in terms of long-term effects were subjective factors, such as the victim’s level of distress, feelings of helplessness, stressor interactions, and the perceived degree of uncontrollability of the situation. The Inter-American Convention for the Prevention of Torture (1985) is more express than the CAT in recognizing the damage that forms of psychological manipulation can cause:

Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.

Sixth: Given the United States’ salience and global influence, official authorizations to use Separation even under tightly controlled circumstances could easily inspire other governments to utilize similar techniques, but without the Manual’s key protections or the overarching imperative of guaranteeing humane treatment. The risk is thus that the U.S. acceptance of both forms of Separation will give cover to other states to utilize more brutal forms of incommunicado detention and sensory deprivation. Moreover, the Manual itself acknowledges that outside observers might perceive of Separation as impermissible—and, indeed, its retention will prevent the United States from fully repairing its international reputation and the damage wrought by our recent history of detainee abuse.

To be sure, states need to be able to interrogate individuals who may have actionable information involving ongoing armed conflicts and acute national security risks. There will be times when certain forms of physical contact and other precautions during interrogations will be necessary to ensure the security of personnel and enable the safe transport of subjects. Moreover, there will be times when contact between detainees will need to be prevented. Nonetheless, many of our coalition partners and other powerful militaries have been able to effectuate secure and humane detainee operations without these methods. Appendix M as drafted simply raises too many concerns about abuse, particularly where less invasive, risky, and controversial procedures exist that can accomplish these same ends. For these reasons, the United States would do well to consider deleting or significantly revising Appendix M.

The remainder of this post provides some background to Appendix M and parses the recent colloquy between the U.S. delegation and the CAT Committee in Geneva around these issues.

The Committee’s Concluding Observations

In their Concluding Observations concerning the United States, the CAT Committee expressed particular concern that the interrogation techniques of “Physical Separation” and “Field Expedient Separation” could be abused and result in a violation of Articles 1 (torture), 2 (duty to prevent abuse), 11 (duty to systematically review interrogation rules), and 16 (prohibition on CIDT) of the treaty. Accordingly, the Committee urged the United States to “review” Appendix M “in light of its obligations under the Convention.” In particular, the Committee recommended that:

the State party should abolish the provision contained in the “physical separation technique” which establishes that “use of separation must not preclude the detainee getting four hours of continued sleep every 24 hours.”

It reasoned that:

Such provision applicable over an initial period of 30 days, which is renewable, amounts to authorizing sleep deprivation—a form of ill-treatment—and is unrelated to the aim of the “physical separation technique” which is to preventing communication among detainees. The State party should ensure detainee’s needs in terms of sleep time and that sleeping accommodation provided for the use of prisoners is in conformity the requirements of Rule 10 of the Standard Minimum Rules for the Treatment of Prisoners.

Equally, the State party should abolish sensory deprivation in the “field expedient separation technique” aimed at prolonging the shock of capture by applying goggles or blindfolds and earmuffs to generate a perception of separation, which based on recent scientific findings with high probability will create a state of psychosis with the detainee, raising concerns of torture and ill-treatment.

Unpacking the Recommendation

By way of background, Appendix M is appended to Field Manual 2-22.3, which was originally promulgated to govern interrogations undertaken by Department of the Army personnel as well as Department of Defense civilian employees and contractors engaged in human intelligence (HUMINT) collection. (Field Manuals in general provide authoritative guidance to military personnel on the policies and law applicable to the conduct of war). The full Field Manual 2-22.3 covers a range of policies and practices around the intelligence process, including the gathering, analysis and dissemination of information.

Although on its face the Field Manual only governs Department of the Army and certain other DoD interrogators, the Manual does note that

non-DOD agencies [read: CIA] [are required] to observe the same standards for the conduct of interrogation operations and treatment of detainees when in DOD facilities. … Non-DOD personnel conducting interrogations in DOD facilities must be certified by their agency and separately gain approval (through their agency’s chain of command) for the additional technique described in this appendix. They must present this written certification and agency approval to the COCOM before use is permitted.

Effective immediately, an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2 22.3 (Manual). Interrogation techniques, approaches, and treatments described in the Manual shall be implemented strictly in accord with the principles, processes, conditions, and limitations the Manual prescribes.

Appendix M

The Manual contains several appendices addressed to, among other topics, the requirements of the Geneva Conventions, an intelligence reliability matrix, a guide for handling detainees and seized documents, and the use of contractors, among others. The Manual’s final appendix, Appendix M, is entitled “Restricted Interrogation Technique—Separation” and authorizes interrogators to use “the separation interrogation technique, by exception, to meet unique and critical operational requirements” on detainees who do not constitute enemy prisoners of war. According to the Appendix, Separation involves:

removing the detainee from other detainees and their environment, while still complying with the basic standards of humane treatment and prohibitions against torture or cruel, inhuman, or degrading treatment or punishment, as defined in the Detainee Treatment Act of 2005 and addressed in Common Article III [of the Geneva Conventions].

Separation is deemed distinct from the practice of Segregation, authorized in Appendix D, which may be

necessary for the movement, health, safety and/or security of the detainee, or the detention facility or its personnel.

Physical separation is not the only method of separation that is authorized by Appendix M, although it is the “preferred” method. The Manual also provides that

As a last resort, when physical separation of detainees is not feasible, goggles or blindfolds and earmuffs may be utilized as a field expedient method to generate a perception of separation. … Use of hoods (sacks) over the head, or of duct tape or adhesive tape over the eyes, as a separation method is prohibited.

By contrast, sensory deprivation is deemed prohibited. The Manual defines sensory deprivation as

an arranged situation causing significant psychological distress due to a prolonged absence, or significant reduction, of the usual external stimuli and perceptual opportunities. Sensory deprivation may result in extreme anxiety, hallucinations, bizarre thoughts, depression, and anti-social behavior.

The Manual does not explain how Field Expedient Separation is distinct from sensory deprivation.

The Purpose of Separation

The Manual indicates that the purpose of both varieties of Separation is to

deny the detainee the opportunity to communicate with other detainees in order to keep him from learning counter-resistance techniques or gathering new information to support a cover story [which should decrease] the detainee’s resistance to interrogation. …

Separation is also utilized to

foster a feeling of futility [and] prolong the shock of capture.

The Manual insists that the use of Separation—which requires “special approval, judicious execution, special control measures, and rigorous oversight”—

is consistent with the minimum humane standards of treatment required by US law, the law of war; and does not constitute cruel, inhuman, or degrading treatment or punishment as defined in the Detainee Treatment Act of 2005 and addressed in Common Article III

when employed in accordance with the safeguards outlined in the manual, including the general requirement of humane treatment.

Protections Against Abuse

Detainees subject to Separation must be allowed some sleep. Specifically:

Use of separation must not preclude the detainee getting four hours of continuous sleep every 24 hours.

The Manual outlines several safeguards for the use of Separation. For one,

Separation will only be used during the interrogation of specific unlawful enemy combatants for whom proper approvals have been granted [and] at Combatant Command-approved locations.

The special approval must come from the Combatant Command (COCOM) Commander as well as the first General Officer/Flag Officer (GO/FO) in the interrogator’s chain of command; the latter must approve each specific use of separation as well as the full interrogation plan.

In addition, Physical Separation is limited to 30 days of initial duration, whereas Field Expedient Separation is limited to 12 hours of initial duration. However,

[t]his limit on duration does not include the time that goggles or blindfolds and earmuffs are used on detainees for security purposes during transit and evacuation.

Extensions to both forms are allowed but subject to review. Separation may also be used in combination with other interrogation approaches, such as futility, incentive, and fear up (exploiting pre-existing fears). That said, advanced

[p]lanning must consider the possible cumulative effect of using multiple techniques and take into account the age, sex, and health of detainees, as appropriate.

The Manual acknowledges that

separation poses a higher risk to the detainee than do standard techniques, and so require strenuous oversight to avoid misapplication and potential abuse. … Interrogators applying the separation technique and the chain of command supervising must be acutely sensitive to the application of the technique to ensure that the line between permissible or lawful actions and impermissible or unlawful actions is distinct and maintained.

In addition to the risk of abuse inherent to Separation, the Manual also raises concerns about “optics”:

As an interrogation technique, separation is particularly sensitive due to the possibility that it could be perceived as an impermissible act.

The Ensuing Colloquy

The Committee and the U.S. delegation conducted an extensive and iterative colloquy on Appendix M. Committee members were mostly concerned with two elements of Separation. The first concerns the potential for Physical Separation to lead to sleep deprivation. One Committee member (Alessio Bruni of Italy) noted:

Is sleep limited to four hours a day for 30 days or more a form of ill-treatment? Ordinarily the amount of hours of sleep may vary [with the] individual; four hours are definitely insufficient for a majority of people and over a long period of time. So, I would like to know from the delegation, what is the purpose of this limited amount of sleeping hours allowed to a detainee? Because we learn from the Manual that the purpose of the separation technique is to deny the detainee the opportunity to communicate with other detainees, so why to prevent the detainee from sleeping a sufficient number of hours? I don’t know. Would his prison guards be afraid that he communicates with others while he’s sleeping? I would appreciate some clarification [from] the delegation on this point.

The second concerns Field Expedient Separation. On this, another Committee member (Jens Modvig of Denmark) noted:

According to the Army Field Manual, the separation technique includes field expedient separation, which aims to prolong the shock of capture by utilizing goggles or blindfolds and earmuffs to generate a perception of separation. The duration of this treatment is 12 hours, not including time where goggles or blindfolds and earmuffs are used for security purposes during transit and evacuation. Extensions past the 12 hours of initial duration must be reviewed by the servicing Staff Judge Advocate.

Considering that recent research has demonstrated that deprivation of visual and auditory stimuli creates psychotic symptoms with most people after as little as 25 minutes deprivation, the described procedure for field expedient separation for many hours raises concerns whether this practice is in accordance with the Convention.

When the U.S. delegation had not addressed Field Expedient Separation, Modvig reiterated his concerns about potential harms:

My question related to the field expedient separation, which involves a deprivation of sensory inputs that have scientifically been demonstrated to provoke psychotic conditions, so I did not get any response to the considerations of whether this might involve ill-treatment.

Modvig also asked for empirical information about

the number of times the field expedient separation were used during the reporting period, and how many of these cases represented an extension of the 12 hour maximum. Do any of the procedures include a medical assessment? If so, please inform about the results of these.

USG Responses

With regard to the allowed 4 hours of sleep, Brigadier General Rich Gross, Legal Counsel to the Chairman of the Joint Chiefs of Staff, indicated that

The manual explicitly prohibits threats, coercions, and physical abuse. Nothing in the Army Field Manual, to include Appendix M, authorizes or condones the use of sleep manipulation or sensory deprivation.

Furthermore, Gross made clear that any sleep regulation would need to adhere to the other overarching guidelines on human treatment contained in the Manual and other binding US and international law:

For example, Mr. Bruni, you mention the language in Appendix M that states that the use of separation must not preclude the detainee from getting four hours of continuous sleep every 24 hours and questioned whether that would be adequate over a 30-day period. First, this standard must, of course, be applied consistently with all applicable legal, regulatory and policy principles and guidelines which provide that all prisoners and detainees, regardless of status, will be treated humanely.

Gross indicated that this requirement of humane treatment would ensure that the 4-hour limitation would not be applied over the course of 30 days or even over two consecutive days:

The four-hour standard is not a daily limit but rather a minimum standard. It is certainly not intended to mandate, for example, 30-days of separation with only 4 hours of sleep per day. Nor would it allow 40 continuous hours of interrogation with only four hours of sleep on either end.

Gross also invoked the proverbial Golden Rule:

As the Manual states, in attempting to determine if a contemplated technique or approach should be considered prohibited, consider whether if the proposed technique were used by the enemy against one of your fellow soldiers, you would believe your soldier had been abused.

The CAT Committee seemed unconvinced. As one member (Bruni) noted:

Now, four hours sleep is indicated, by, I know—it is a minimum standard. Okay. But a minimum standard means that it can be applied. It is legal to have four hours of sleep for a person under interrogation. It is permissible, so it can be done, for thirty days, and more, because this [restriction] can be removed. So the question remains the same. Four hours of sleep equal[s] deprivation of sleep, so my suggestion is that this Annex M of the Military Interrogation Manual [sic] be simply deleted from the Manual.

Gross tried again:

You ask about the sleep deprivation, so I want to go over that again. As I stated before, you cannot read the four-hour standard in isolation. It’s a minimum standard, it’s not a maximum that they can get on any given day, and you have to apply it consistently with the remainder of the Field Manual’s legal, regulatory, and policy guidance. It’s a several hundred-page Manual. … So all of that regulatory and legal guidance, in addition to all of our other international and domestic legal requirements. So it is simply not just a four-hour standard but that taken in context. And we monitor detainees very carefully: medical monitoring, psychological monitoring, to ensure that their mental and physical health is good. And legal advisers monitor their treatment constantly as well, to ensure that it is humane, legal, and so forth.

Gross eventually provided more granularity for when Field Expedient Separation is utilized, although could not provide any empirics for lack of data:

Sir, you ask about the field expedient separation. And my apologies for not answering that earlier. With regard to that, this is a very tactical decision made at the point of capture, typically at an objective. We don’t aggregate or track that particular statistic. It’s done under the constant supervision of the chain of command. It’s done—certainly there are legal advisers at all levels of command that constantly advise and train on humane requirements of the law of armed conflict and our other domestic and international legal obligations. And, so, that technique—much like, as I told Mr. Bruni, for sleep, for example, you would have to take that in context of our entire body of law—domestic and international law—and policy.

Protections Against Abuse

As noted above, Gross conveyed that all interrogations are monitored to ensure compliance. Assistant Secretary Tom Malinowski, of the Bureau of Democracy, Human Rights, and Labor, returned to this topic and noted that the Manual provides not just a set of prohibitions, but also a closed list of permissible techniques:

What’s most important, I think, about the Field Manual is not just that it prohibits certain unlawful techniques, it’s that it provides a complete list of all the techniques that professional, experienced interrogators operating in armed conflict need to use to get truthful information, and those interrogators are forbidden from using any technique that is not listed on the positive list. I know of no other country that requires its national security and intelligence agencies to limit themselves to a specific set of interrogation methods that are publicly listed on a website.

Moreover, Malinowski noted that the specificity with which the Manual governs interrogation techniques is unique as compared to other nations whose policies are as transparent:

As I mentioned yesterday, we now arguably have more detailed and specific regulations barring abusive interrogations than any other country on Earth. Some are so specific that they inevitably spark more questions, like minimum sleep requirements for detainees, or rules governing how prisoners can be separated from each other on the battlefield—all of which we have been happy to try to answer today.

The Scope of the Manual

Modvig also asked about the reach of the Field Manual:

[I]s the CIA authorized to interrogate detainees at short-term or transitory facilities? If so, is the CIA restricted to the interrogation techniques and approaches set out in the Army Field Manual?

In response, and with respect to the reach of the Field Manual, Gross clarified that although the Field Manual may only technically govern the Department of the Army and ancillary civilians and contractors:

Guidelines in the Army Field Manual are consistent with U.S. domestic and international legal obligations and the techniques are binding on the U.S. military as well as all federal government agencies including intelligence agencies and the High Value Interrogation Group, or HIG.

Thus, the same limitations apply

to all individuals in U.S. custody or under U.S. effective control in any armed conflict.

In response to a more pointed question about whether the CIA is bound by the guidelines in the Field Manual, Gross stated:

You also ask whether the CIA agents had to follow the requirements of the Army Field Manual and whether they are included in the same training as law enforcement agents. Under the Executive Order 13419, President Obama mandated that all interrogations be conducted in accordance with the requirements of the Army Field Manual, including those done by the CIA. And the CIA itself ensures itself that its officers are aware of these requirements

Malinowski closed with a discussion of the willingness of the United States to constantly strive to improve its policies and practices:

So this process of improvement, which begins with a willingness to confront problems directly and honestly, is what distinguishes democratic countries committed to the rule of law, and it will continue in the United States, whether it’s our effort to abide by the law as we defend our country, or to protect the rights of the most vulnerable people within our society, or to respect always, here and everywhere, the right to dissent. That is the most important fact we wish to report to this Committee. That is what enables us to champion the eradication of torture everywhere in the world.

For the reasons outlined above, revising Appendix M offers an opportunity to continue this rigorous process of self-reflection and reform.

About the Author(s)

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own.
Follow her on Twitter (@BethVanSchaack).